International Journal of Law

International Journal of Law

ISSN: 2455-2194
Impact Factor: RJIF 5.12
www.lawjournals.org
Volume 4; Issue 3; May 2018; Page No. 10-13

Legal provisions of adoption in India: A critical study with special reference to child protection
Priyal Garg
Assistant Professor, Department of Law Ujjwal Kumar Singh Law College Dehradun, Uttaranchal University, Dehradun,
Uttarakhand, India

Abstract
The subject matter of this article deals with the position of laws of adoption in India. The adoption has been practiced since a long
time ago but the law for it emerged in 19th century. Adoption in India is governed by the personal laws of different religions but
there is no general law of adoption for all of the religions in India. There is only one personal law which governs adoption in India
i.e. Hindu Adoption and Maintenance Act, 1956. There is no specific law governing adoptions in Muslims, Parses, Christians and
Jews, they can be a guard to the children (ward) under the Guardians and Wards Act, 1890. The Juvenile Justice (care and
protection of children) Act, 2000 provides provisions of adoption to all irrespective of any religion, still a uniform law has been
lacking to provide the right to adoption to all religions as adoption is governed by the personal laws. There is no legislation for
inter-country adoption in India. Inter-country adoption means adoption by foreign parents. Till this date there is no law which
governs Inter-country adoptions. This article deals with the problems in existing laws of adoption in India and the need of its
uniformity and also the possible improvements to be made.

Keywords: adoption, children, inter-country, uniformity, legislation and religions

Introduction times, adoption was primarily concerned with providing a

The question of rights of children has emerged as one of the
most vibrant issues for discussion in this new millennium. The
fact remains that children remain a part of the disadvantaged
minority group even today as per realization of human rights
and social justice are concerned. The main reason for this
lacuna is that the children are still not complete political entity
in true sense of the term. Besides they are generally
physically, mentally and economically dependents. In this age
of globalization where things are changing rapidly, taking care
of child’s rights at every stage has taken a back seat. This not
only affects their whole value system, but also their present
social and economic needs. No doubt that the future of
humanity depends on children to a large extent even then a
very partial and parochial approach has been followed toward
bringing them on the mainstream of social and political
agenda.
Adoption is the act of establishing a person as parent to one
who is not in fact or in law his child. The purpose of adoption
is to give effect to the new status of relationship which is not
by nature but is created or established by status or legal
relationship of parent and child between persons.
In ancient civilisations, the purpose of adoption was very
different from what is of modern times. Earlier, male line was
the main goal of it, contemporary adoptions involve either sex.
The primary focus of the adoption is the welfare of the one
who is adopted rather than of the adopter. Adoption is
definitely a means of building a family where the needs of
destitute children and childless couples are met. Adoption of
children is a socio legal process, and has existed in India and
abroad since ancient times. Its primary aim is to create a home
for a child where it can be cared and matured. In ancient
family heir’s and strengthening the family. It was only after
the World War-I and II, the concept of welfare of the child
emerged and the focus shifted on the interests of the children.
The desire to provide homes to orphans and homeless children
led to the adoption of such children. Our main concern is to
provide legislations for the welfare of the children.
The government of India has adapted various policies for the
welfare of the children. A Bill was introduced in 1980 called
Adoption of Children Bill 1980. India has been signatory to
various International Conventions for the welfare of the
children.
Laws of Adoption in India
i) Hindu Adoption and Maintenance Act
Adoption according to Indian law is a matter of personal laws
and hence is governed by various legislations. The adoptions
in Hindu Law are governed by the Hindu Adoption and
Maintenance Act, 1956. The Act applies to all who are by
religion Hindus, including Buddhists, Jains, and Sikhs and any
person who is not a Muslim, Parsi, Jew or Christian. Under
this Act, following persons can make adoptions:
1. Any male Hindu, who is of sound mind, not a minor and is
eligible to adopt a son or daughter, but if the male has a
living spouse at the time of adoption, the consent of his
spouse is mandatory.
2. Any female Hindu, who is not married or if married, her
marriage has been dissolved or whose husband is not alive
or her husband has been declared incompetent can adopt a
son or a daughter.
In case a biological child already exists in the family, then the
adoption of the child of opposite sex is allowed. Where there

10
International Journal of Law
is an adoption of male child by female, than the female shall
be at least 21 years older than the son. Where there is an
adoption of a female child by male, than the male shall be at
least 21 years older than the daughter. The adopted child has
the same rights as the biological child. Adoption under this
Act is irrevocable.
ii) Guardians and Wards Act, 1890
As there is no general law for adoption and the personal laws
of Muslims, Christians, Parses and Jews does not recognise
the concept of complete adoption. Under this Act who is
desirous of a child can become a guardian of the child until it
comes to 21 years of age. This Act however does not provide
any adoptive rights to the guardian and the only relationship
which exists is of Guardian-Ward between the parents and the
child. Unlike the Hindu Adoption and Maintenance Act, 1956,
this Act does not confer the status of the biological child on
the child so adopted.
iii) The Juvenile Justice (Care and Protection of Children)
Act, 2000
In December, 2000, the parliament of India passed the
Juvenile Justice (care and protection) Act, 2000 to protect and
safeguard the interests and welfare of the children in need of
care and protection. Amendments have been made in the
existing Act, 2000 to show greater sensitivity to the needs and
rights of child. The Juvenile Justice (care and protection) Act,
2006 has been introduced with the objective to give adoptions
a child friendly approach. It widened the definition of ‘child in
need of care and protection’ by including ‘abandoned’ and
‘surrendered children’ and ‘a juvenile found begging’, ‘a
street child’ or ‘a working child’. Under this Act, there is no
bar to religion for adoption. The provisions of this Act apply
to all Indian citizens.
iv) Cental Adoption Resource Authority
CARA is an autonomous body under the Ministry of Social
Justice and Empowerment, Government of India. It was set up
on 20th June 1990, to deal with all the matters concerning
adoption in India. Its function is to mandate and regulate both
in-country and inter-country adoption of children in India.
CARA is designated as the Central Authority to deal with
inter-country adoptions in accordance with the provisions of
the Hague Convention on Inter-country Adoption, 1993,
ratified by Government of India in 2003. CARA primarily
deals with adoption of orphan, abandoned and surrendered
children through its associated /recognised adoption agencies
[1]
. and Allah is Oft-Forgiving, most merciful. The Prophet is
Adoptions among the Different Religions
In India there is no general law for adoption, it is regulated by
the personal laws of the community. Among Hindus adoptions
are regulated through the Hindu Adoptions and Maintenance
Act, 1956. The Act does not cover adoptions for Muslims,
Christians, Parsees, and Jews. These communities do not have
personal laws for adoptions except a section of Muslims. The
other communities indirectly invoke The Guardian and Wards
Act, 1890 to obtain guardianship of the child during minority,
but do not deal with adoption as such.
i) Adoption Under Hindu Law
The Shastric Hindu Law considers adoption as a sacramental
rather than a secular act. The Supreme Court has observed that
the objects of the adoption are twofold:
1. The first object was religious, i.e., to secure spiritual
benefit to the adopter and his ancestor, by having a son for
the purpose of offering funeral cakes and libations of water
to the means of the adopter and his ancestors;
2. The second was to preserve the continuance of one’s
lineage.
Presently, the adoption under Hindu Law is governed by the
Hindu Adoption and Maintenance Act, 1956. It only applies to
Hindus, defined under Section-2 of the Act and includes any
person who is Hindu by religion, including Buddhists, Jains,
and Sikhs and to any other person who is not a Muslim,
Christian, Parsi or Jew by religion. It also includes any
legitimate or illegitimate child who has been abandoned both
by his father and mother or whose parentage is unknown and
who is in either case brought up as Hindu, Buddhist, Jain or
Sikh.
Before the commencement of this Act, only male could be
adopted but after this Act was introduced a female may also
be adopted.
ii) Adoption Under Muslim Law
Mohammedan law does not recognise the concept of adoption
and argues that it is against the Quran. They take into account
the concept of acknowledgement. If a Muslim adopts a child,
the paternity of the child cannot be established.
Before the Shariat Act, 1937 adoptions were recognised
according to customs, but in matters of adoption Muslim
personal laws do not automatically apply on a person.
Muslims never acknowledges another’s child as their own.
Unlike the Hindu Law, the adoptive parents do not get the
status of natural parents under Muslim Law.
It has been believed that the Prophet himself disapproves of
adoption. The relevant verse of Quran as contained in S.33.
A4-6 reads as:
“Allah has not made for any man two hearts in his breast: nor
has He made your wives whom ye divorce by Zihar your
mothers: nor has He made your adopted sons your sons. Such
is (only) your (manner of) speech by your mouths. But Allah
tells (you) the Truth, and He shows the (right) way. Call them
by after their fathers: that is just in the sight of Allah. But if ye
not know their father’s name, (then they are) your brothers in
faith, or your friends but there is no blame on you if ye make a
mistake therein: (what counts is) the intention of your hearts:
closer to the Believers than their own selves, and his wives are
their mothers. Blood relations among each other have closer
personal ties, in the Book of Allah, than (the brotherhood of)
believers and Muhajirs [2].”
The careful reading of the above verse will reveal that it does
not prohibits adoption, it merely says that the adopted child is
to be called by their father’s name and if the name of the
father is unknown then it shall be called as mulla or brother. It
is nowhere mentioned that if one adopts a child it will be
against the dictates of the Allah. Thus it is interpreted that the
Holy Quran does not prohibits adoption.
11
International Journal of Law
In the case of Muhammad Allahdad Khan vs. Muhammad
Ismail [3] Mahmood, J., remarked that, “There is nothing in the
Mohammedan Law similar to adoption as recognised in
Roman and Hindu system. The Mohammedan Law does not
recognise adoption as a mode of filiation.”
Uniform Civil Code
The constitution of India in Article 44 states that, “The State
shall endeavour to secure for the citizens a uniform civil code
throughout the territory of India”. But we have failed to
provide a uniform law of adoption for all the communities.
The first attempt to provide a common law of adoption was
the Adoption of Children Bill 1972 which was applicable to
all the communities but it was opposed by the Muslim
community. According to them Adoption is against the Quran.
The second attempt was made on 16th December, 1980, the
Adoption of children Bill 1980 was introduced in the Lok
Sabha, which exempted Muslim Community. This attempt too
was failed as it was opposed by the Bombay Zorastrian Jashan
Committee, which formed Special committee to exempt
Parsees from the bill. This bill was also lapsed when the
parliament dissolved in 1984.
The Indian Constitution embodies Article 14 and Article 15
which talks about Equality before law and prohibition of
discrimination against any citizen on certain grounds, but
having laws of adoption for only one community is a gross
violation of these provisions. The Supreme Court of India in
the case of Bommai vs. Union of India [4] states that
“Secularism is one of the basic features of the Indian
Constitution while freedom is guaranteed to all persons in
India from that point of view of the State, the religion, faith or
belief of a person is immaterial. To the state all are equal and
are entitled to be treated equally.
There was no uniformity of law of adoptions until the
judgement of Shabnam Hashmi vs. Union of India [5], any
person can adopt irrespective of the religion under the
Juvenile Justice (care and protection) Act, 2000. This case was
presented by Shabnam Hashmi, who has only guardianship
rights over a girl she adoption as adoption is not allowed in
Muslim personal law. She claimed adoption on Humanitarian
grounds and adoption to be a fundamental right. The court
granted her the right of the parent over the girl and also stated
that all the future intended parents desirous of adopting can
seek adoption under the Juvenile Justice (care and protection)
Act, 2000. However the Supreme Court has rejected the right
of adoption is a fundamental right envisaged under Article 21
of the Constitution of India.
The decision of the Supreme Court has brought an urgent need
to revise the adoption laws and grant every parentless child
the right to have a family, to be nurtured, to be taken care of,
and to have a home.
Inter-Country Adoptions
The inter-country adoptions are comparatively a new
phenomenon which began to develop on a large scale at the
end of the Second World War. There is no legislation
providing for the adoption of an Indian child by a foreign
parent. The only way in which a foreign parent can take an
Indian child in adoption is by becoming a guardian of the
child under the Guardians and Wards Act, 1890. Section 7 of
the Act deals with the power of the court to appoint or declare
a person as guardian. Therefore, a foreigner wishing to take an
Indian child for adoption has to use the circuitous route under
the Guardian and Wards Act, 1890. The order will appoint the
person as guardian of the person of the child with leave to
remove the child out of India and take it to his own country
for the purpose of adopting it, in accordance with the law of
his country. This procedure led to a lot of malpractices by
social organizations and voluntary agencies engaged in the
work of facilitating the adoption of Indian children to foreign
parents. After hearing several social organizations and
voluntary agencies engaged in placement of child in adoption,
an exhaustive judgment was delivered formulating the
normative and procedural safeguards to be followed in inter
country adoption.
The procedure for inter country adoptions laid down by the
Supreme Court in Lakshmikant Pandey vs. Union of India [6]
case can be treated as modern public interest litigations which
have acknowledged inter country adoption as a means to
rehabilitate abandoned children. These guidelines have put a
stop to provide adoptions. All inter country adoptions are
adoptions directly by foreign parents through government
recognized adoption authorities or agencies recognized by
them in both sending and receiving countries. The judgments
attempt to make every party in the adoption process
accountable.
The writ petition in this case was instituted on the basis of a
letter addressed to the court by an advocate, Laxmikant
Pandey alleging that Social Organization and Voluntary
Agencies engaging in the work of inter-country adoptions are
indulged in malpractices. It was further alleged that not only
Indian children of tender age are under the guise of adoption
exposed to long horrendous journey to distant foreign
countries at great risk to their lives but in cases where they
survive and where these children are not placed in the shelter
and the Relief Homes, they in course of time become beggars
or prostitutes.
Besides these guidelines laid down by the Supreme Court in
Laxmikant Pandey’s case, there is no definite legislation in
India for inter-country adoptions.
Suggestions and Conclusion
Adoption is one of the concepts which have undergone a
radical change in the course of transit from primitive to
modern age. A study through times provides an interesting
view of its changing concept, form, objectives and purposes.
By adoption an artificial but permanent relationship of parent
and child is created which was not in existence earlier.
Adoption raises a presumption of factitious birth of the child
in the adopter's family.
Institution of adoption in one form or the other is prevalent in
almost all the legal systems of the world. The roots of the
institution are traceable into earliest historical times. There has
been a complete change in approaches towards children. The
shift in focus is from the welfare to the developmental
approach. There is a need for not only reviewing the existing
law but making the legal provisions in the context of adoption
of all needy children.
Adoption in India is recognised as such by the Hindu law only
and not by the Mohammedan, Christian or Parsee law. Even
12
International Journal of Law

so, after the judgement of Shabnam Hashmi’s they can adopt a

child under the Juvenile Justice (care and protection) Act,
2000, absence of a uniform law for adoptions is still a major
lacuna of our legislature system. There should be a uniform
law for adoptions and adoptions should not be governed by
personal laws. A secular approach should be taken rather than
having different laws for different religions.
It cannot be overstated that the need of the hour is great
desirability of a uniform law of adoption so that in accordance
with our constitutional mandate under Articles 14, 21 and 44
of the Constitution of India all communities are given an equal
standing in the society and the children do not suffer and their
interest is not abused. We should not let religious orthodoxy
and sentiment rule our personal laws. It is the need of the hour
to provide the destitute, homeless, unwanted children a home,
thus a uniform personal code has to be adopted
In India, conditions of poverty and related social problems,
scarcity of national resources and economic pressures on
individuals for survival often result in the neglect of children.
Current trends and social concerns in this respect, however,
oblige the nation to give due importance to this aspect if and
when comprehensive legislation is undertaken.
As the position stands at present, there is no statutory law in
India providing for adoption of a child by foreign parents.
Neither does any other national legislation lay down the
procedure to be followed in such a case. Apart from the
guidelines ruled out by the honourable Supreme Court in the
case of Laxmikant Pandey vs. Union of India, the Indian
Parliament has failed in providing a legislative frame-work for
inter-country adoptions. A codified legislation should be
framed for inter-country adoptions to provide justice and for
the welfare of the child.
It is worthy of mention that in the last four decades several
major policies and action plans have been implemented for
improving the status of children. But still the commitment
undertaken by India requires that legislative administrative
and other measures follow to implement specific policies and
a review and revision of all pertaining laws to the children.
The children constitute the most fundamental and valuable
resource of any society and there is justice to the child as in
the words of Rabindranath Tagore:
“Every child when born brings with the hope that god is not
yet disappointed with man”

References
1. http://cara.nic.in/about/about_cara.html
2. The Holy Quran by Mushaf Al-Madinah An-Babawiyah
edited by the Presidency of Islamic Researchers, IFTA at
1144
3. ILR (1888) 12 ALL. 289
4. JT 1994 (2) SC 215.
5. (2014) 4 SCC 1.
6. AIR 1986 SC 272.

13